Lawyer using client trust as A/R inforcement

[LawDona411]

What is the name of your state? CA

My father's divorce attorney as part of the proceedings liquidated stocks that belonged to my father and sister (that incorrectly had my father's wife's name on them). He put those monies into an attorney/client trust account and when the money was issued to my sister and my father, the check for my father was nearly $5,000.00 short. When my dad inquired about the missing money the lawyer said he took the extra money to pay what my father owed at the time for his services.
Whan this happened the divorce itself was not even half way completed. The amount taken was never credited to my dad's legal bill. (this happened May of 07)
In April of 2008 the attorney sent my dad a letter saying he was withdrawing from the case due to unpaid fees. (fees he knew we were waiting to get from the 1/2 of the retirement account of the former wife and the order was expected to be public in mid-June 2008) One week after the letter from the lawyer my father went into at home hospice care. On April 22, 2008 the lawyer put my fathers's account into collections.
My father is now in a coma and the lawyer never did substitute out as when the order came down 13 June 2008 he did never contacted my dad with the results instead on 17 June scheduling some hearing to be heard on the same case in September the clerk referred to as "a review of the estate"????
My questions are: was taking his money out before giving my dad his money legal/ethical? Doesn't sending my dad to collections create a conflict of interest disqualifing this attorney from taking any action that may be considered representation of my father regardless of his failure to substitute out as he stated he was going to do back in april? And finally, now that my father has been officially awarded 1/2 of his exwife's retirement fund must we execute a QDRO (Qualified Domestic Relations Order).

HELP

[Texas Pooh]

Did your father have a written agreement with the lawyer? What does it say?

For example, what was the fee basis? What kind of agreement did your father have with the lawyer? Was it an hourly agreement, by which the attorney is paid an hourly fee, and the invoices are to be paid monthly? Or was it a contingency contract, by which the attorney receives a percentage of any monies that are received?

It would be unusual for a divorce to be contingency, but not unheard of when there are substantial assets to be recovered.

How far behind on payment of his invoices was your father in May, 2007 when the funds were disbursed? How far behind was your father in April, 2008? Did the lawyer agree to defer payment until the funds were disbursed?

Was your father receiving monthly invoices from the lawyer? How much money is the lawyer owed now?

[LawDona411]

The agreement was hourly, billed monthly. Divorce was filed by exwife (not my mother) 1 day after cleaning out $30,000.00 from my dad's account Oct 2006. No children involved, no real property except two cars and 1/2 the wife's retirement (a 10 year marriage) and it took until Feb 2008 to get the divorce with the Judge delaying the final order of financial responsibility until June 13, 2008. My father was a general contractor so in addition to payments of nearly $9700.00 (not counting the 5K from the stock fiasco) he did work for the attorney in trade. My dad has been attempting to live on $411.00 Social Security and he has been being helped by 2 of us kids to survive. The collections is for $8500.00 and yes the lawyer agreed to defer payment until the funds were disbursed after a QDRO.
This morning, less than 2 weeks before his 71st birthday my father passed away. He has been very ill throughout the entire divorce process and I have taken care of him with the help of in home hospice for the past 2 months. I have several notes in his own writing stating how the attorney never credited the stock money (taken without advanced notice or my father's agreement) toward my dad's bill. I will be demanding a full itemized statement from the time of this lawyer was retained through collections immediately.
Funny thing is that this past tuesday the attorney without notice to my father arranged a September Court date for this "done" divorce that the clerk told me was "a review of the estate"??? I have no clue but fully intend to get to the bottom of what is up here. Thanks for your attempt to help and any such wisdom you may provide me in the future. God bless.

[garrula lingua]

In California, lawyers can't charge contingency fees for divorce or criminal cases.

OP, notify the state bar. They will, at least, investigate -especially the five thousand dollars (that was unethical to deduct the five thousand).
Usually, the Bar refers fee disputes to local bar arbitration, but as Dad has died, the Bar may only investigate the atty's handling of his IOLTA trust account/bookkeeping/billing.

I'm sorry for your loss.

You should open probate and get authority (as the executor) to question the atty's bill and complete the QDRO. The monies from the QDRO have to be sent to the estate and distributed per the will or per intestate distribution.

The cheapest (possibly not the wisest) way of approaching the QDRO is to send a letter to the retirement entity who is holding the money. Some funds supply a sample QDRO to be completed. Try contacting them, and maybe take any blank form to an attorney for completion or review of your completion.

The QDRO has to be signed by the Family Law Judge and that Order must be sent to the retirement fund.

Good luck and, again, my condolences on the loss of your father.

[LawDona411]

Thank you both for your advice and for your kind words. My Father has a living trust so I do not think Probate is the next step but we will find a way through this. Thank you again for your kind thoughts. I appreciate that very much. And I will have the Attny investigated.

[garrula lingua]

Dona,
You may have to open Probate (you don't need a will) in order to 'stand in your father's shoes' in handling the atty bill and the QDRO.

It doesn't matter that Dad's assets were in a trust - you have to recover the QDRO money for Dad's estate.

Call the State Bar and report the attorney, and ...
Speak with a Probate Attorney regarding the QDRO (a family law atty can do the QDRO, but the payment/disbursement should go thru Dad's Probate, to be paid to his successors).